IN THE CASE OF:   

		BOARD DATE:  9 December 2020

		DOCKET NUMBER:  AR20200002450


APPLICANT REQUESTS:  

*	an upgrade of the characterization of service of the Former Service Member 
(FSM) from Under Conditions Other than Honorable to Honorable 
*	a personal hearing before the board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Self-Authored letter
*	Court Order dated 21 October 2019

FACTS:

1.  The applicant did not file within the three-year time frame provided in Title 10, United 
States Code, section 1552(b); however, the Army Board for Correction of Military 
Records (ABCMR) conducted a substantive review of this case and determined it is in 
the interest of justice to excuse the applicant's failure to timely file.

2.  The applicant states that she previously submitted a request to the ABCMR to have 
the FSM’s records corrected by removing a Ms. B_ from being reflected as his spouse. 
She contests that she was still legally married to the FSM at the time and the provided 
divorce decree contained a forged signature as adjudged on 
9 September 2019 by the First Judicial Court.  The result of this proceeding 
determined that the applicant was the legal spouse of the FSM.  The applicant, after 
now establishing proper interest would like the FSM’s characterization of service 
upgraded resulting in her entitlement to benefits.  The applicant further provides that the 
FSM was exposed to Agent Orange and was being treated for headaches and anxiety 
while attending Basic Training and Advanced Individual training in 1968 

3.  A review of the FSM’s available personnel records reflects the following: 

   a.	On 23 May 1960 he married the applicant. 
   
   b.	On 29 October 1968 he enlisted in the Regular Army. 
 
   c.	On or about 11 August 1969 (General Court Martial Order Number 16) the FSM 
appeared before a general court martial.  He was charged with violating Article 134 and 
108 of the Uniformed Code of Military Justice (UCMJ).  On 30 June 1969 he unlawfully 
killed another Soldier while driving a military vehicle while intoxicated.  He plead and 
was found guilty of all charges.  The judge ordered that he be discharged from service 
with a bad conduct discharge, forfeiture of $100.00 per month for 10 months, confined 
at hard labor for 1 year and reduced in grade to Private (PVT)/E-1.  This sentenced was 
adjudged on 3 September 1969.

   d.	On 7 July 1970 (General Court Martial Order Number 109) the sentence to bad 
conduct discharge, confinement at hard labor for nine (9) months, forfeiture of $100.00 
per month for nine (9) months and reduction to PVT, adjudged on 3 September 1969, 
and promulgated in General Court-Martial Order Number16, was affirmed having been 
complied with.  That portion of the sentence pertaining to confinement had been served.

   e.	On 16 July 1970 he was discharged from the Army.  His published DD Form 214 
(Armed Forces of the United States Report of Transfer or Discharge) indicates an 
“Under Conditions Other than Honorable” characterization of service in accordance with 
General Court Martial Order Number 109. 

   f.	On 10 April 2014 the FSM died. 

4.  The applicant provided documentation (Court Order) to establish proof of proper 
interest as the FSM’s legal spouse.  

5.  See applicable regulatory guidance below under REFERENCES.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief 
was not warranted.  The Board carefully considered the FSM spouse (applicant) 
request, supporting documents, evidence in the records and published DoD guidance 
for consideration of discharge upgrade requests.  The Board considered the applicant's 
statement, the FSM record of service, the frequency and nature of his misconduct, the 
reason for his separation and whether to apply clemency.  The Board found insufficient 
evidence of in-service mitigating factors for the serious misconduct.  Based on a 
preponderance of evidence, the Board determined that the character of service the FSM 
received upon separation was not in error or unjust.

The applicant’s request for a personal appearance hearing was carefully considered.  In 
this case the evidence of record was sufficient to render a fair and equitable decision.  
As a result, a personal appearance hearing is not necessary to serve the interest of 
equity and justice in this case.  

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

XXX	XX	XXX	DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or 
injustice.  Therefore, the Board determined the overall merits of this case are insufficient 
as a basis for correction of the records of the individual concerned. 

		  
I certify that herein is recorded the true and complete record of the proceedings of the 
Army Board for Correction of Military Records in this case.

REFERENCES:

1.  Title 10, United States Code, section 1552(b), provides that applications for 
correction of military records must be filed within 3 years after discovery of the alleged 
error or injustice. This provision of law also allows the ABCMR to excuse an applicant's 
failure to timely file within the 3-year statute of limitations if the Army Board for 
Correction of Military Records (ABCMR) determines it would be in the interest of justice 
to do so.

2.  Army Regulation 635-200 (Personnel Separations Enlisted Personnel) sets forth the 
basic authority for the separation of enlisted personnel. Under Chapter 3 it provides that 
a Soldier will be issued a Bad Conduct Discharge (BCD) pursuant only to an approved 
sentence of a general or special court-martial. The appellate review must be completed 
and the affirmed sentence duly executed. It further provides that: 

     a.  An honorable discharge is a separation with honor and entitles the recipient to 
benefits provided by law. The honorable characterization is appropriate when the quality 
of the member's service generally has met the standards of acceptable conduct and 
performance of duty for Army personnel or is otherwise so meritorious that any other 
characterization would be clearly inappropriate.

     b.  A general discharge is a separation from the Army under honorable conditions. 
When authorized, it is issued to a Soldier whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.  

     c.  A Soldier will be given a BCD pursuant only to an approved sentence of a general 
or special court-martial. The appellate review must be completed and the affirmed 
sentence ordered duly executed.

3.  Court-martial convictions stand as adjudged or modified by appeal through the 
judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority 
under which this Board acts, the ABCMR is not empowered to set aside a conviction. 
Rather it is only empowered to change the severity of the sentence imposed in the 
court-martial process and then only if clemency is determined to be appropriate.  
Clemency is an act of mercy or instance of leniency to moderate the severity of the 
punishment imposed.

4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and BCM/NRs regarding equity, 
injustice, or clemency determinations. Clemency generally refers to relief specifically 
granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type 
of court-martial. However, the guidance applies to more than clemency from a 
sentencing in a court-martial; it also applies to other corrections, including changes in a 
discharge, which may be warranted based on equity or relief from injustice. This 
guidance does not mandate relief, but rather provides standards and principles to guide 
Boards in application of their equitable relief authority. In determining whether to grant 
relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the 
prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative 
severity of misconduct, mental and behavioral health conditions, official governmental 
acknowledgement that a relevant error or injustice was committed, and uniformity of 
punishment. Changes to the narrative reason for discharge and/or an upgraded 
character of service granted solely on equity, injustice, or clemency grounds normally 
should not result in separation pay, retroactive promotions, and payment of past 
medical expenses or similar benefits that might have been received if the original 
discharge had been for the revised reason or had the upgraded service 
characterization.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20200002450


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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